personal estate of intestates is the law of the domicile at the time of the death. This is an universal rule at this day, though in some countries there has been a struggle against it, before the law has become finally settled.

The deceased was a native of Scotland, and her domicile of origin was at Kirkstile, Perthshire. She died while in transitu to Canada West, and therefore had not gained a new domicile. A domicile can be acquired only by a residence, with the intention of remaining at the new place of abode. Intention alone is not sufficient. A domicile can be established only animo et facto, by a unison of the fact and the intention (Pothier Cour d'Orleans, ch. 1, § 1, art. 9). In the present instance there was the intention without the fact, the party not having yet reached her proposed home, but dying on the journey. Though the death occurred in this State, our law of distribution does not apply, for there was no intention to establish a domicile here. It is a well settled principle that for the purposes of succession every person must have a domicile somewhere, and that the domicile of origin is not lost until a new one is acquired. Under the circumstances, therefore, I have no doubt that the distribution of this estate must be regulated by the law of Scotland, the intestate's domicile, which had not been changed by the mere intention to remove to Canada, and her decease on her journey.

In Scotland succession is confined to agnati or relatives on the father's side, to the exclusion of cognati, relatives on the mother's side. But of the kindred through the father, some may be of the full blood, as brothers and sisters german, and some of the half blood, as brothers and sisters consanguinei. It is well settled, in contradistinction to the English rule, that among collaterals, kindred of the full blood exclude those of the half blood in the same line of succession (Bank., b. 3, tit. 4, s. 17, 28; Erskine, b. 3, tit. 9, s. 2, 4; Bell's Principles, 672; Robertson on Succession, 379). The next of kin take the estate per capita, and never per stirpes, there being no right of representation among descendants or collaterals (Erskine, ubi supra). In reckoning the degrees of kindred, the mother of the deceased is always excluded from the succession, and brothers and sisters or their descendants take in preference to the father. It is not material then to inquire whether in the present case the intestate left a father or mother, or children of a deceased brother or sister. The brothers of the full blood must in any event succeed to the entire estate. As executors dative have been appointed in Scotland, and the administration here is merely ancillary, the decree will declare the brothers of the whole blood entitled to the succession, and direct payment to the Scotch executors dative for distribution at the place of domicile.

Notes of Recent Cases in New Hampshire.*

June Term, 1856. Rockingham.

WEBSTER V. WEBSTER.

Equity-Waste — Answer setting up mistake in deed.

A DEED Conveying land in fee simple contained a reservation in these words; "reserving all the right, title, and interest in and unto the above named land and buildings for and during my natural life." Held, that the reservation did not give a tenant for life the right to cut down and sell wood and timber.

Where the complainant in a bill for an injunction to restrain waste, claims title to the land under a deed from the defendant, the defendant cannot set up by his answer and show by parol, in defence to the bill, that there was a mistake in the draft of his deed to the complainant.

WATRIS v. PIERCE.

Covenant broken-Discharge by change of terms in contract — Usury.

The plaintiff declared in covenant on a bond dated August 15th, 1851, setting forth that whereas the plaintiff had lent to one Nott, of Boston, agent of the Portsmouth and Concord Railroad, the sum of $20,000, and had taken his two notes therefor, each payable to his own order and by him indorsed, for the sum of $10,000, and each payable in two years with interest semi-annually; and that Nott had conveyed to the plaintiff six hundred and seventy-two shares of the capital stock of the railroad as collateral security for the payment of the notes; in consideration of one dollar and of other good considerations, the defendants covenanted with the plaintiff, that if the notes should not be paid at maturity, or if any part of the interest should remain unpaid at the maturity of the notes, they would, on demand, take a conveyance of the railroad stock and of the notes, and would pay therefor whatever sum of principal and interest that might remain due on the notes or either of them. The declaration also contained averments of performance by the plaintiff of all the conditions precedent set forth in the bond.

The defendants pleaded that, on the 14th of August, 1851, it was agreed between the plaintiff and Nott, that the plaintiff should convey to Nott three lots of land, containing about seven acres,

* Continued from page 319.

adjoining Mount Auburn Cemetery, and should also furnish Nott $10,000 in cash; in consideration for which Nott should give his notes for $20,000, averaging twenty-four months time, with $60,000 of the capital stock of the Portsmouth and Concord Railroad as collateral security, with an agreement of responsible men to the plaintiff that they would take the stock and pay the cash for the same at the amount for which it was pledged, in the event that Nott should fail to pay the notes and interest; that thereafterwards, on the 15th day of the same August, Nott applied to the defendants to become bound to the plaintiff, stating to them the terms, of the agreement, and representing that if they would give to him their deed, it should be delivered on those terms, and thereby he would obtain the $10,000 of the plaintiff, and would be able to raise a further large sum by the sale or mortgage of the land; that the defendants, upon these representations, as sureties for Nott, and to enable him to obtain the money and land, signed the bond, to be delivered upon the agreement aforesaid; yet that the plaintiff refused to perform his agreement by delivering to Nott the $10,000, and conveying to him the land; and though he knew of the representations that had been made, and the purposes for which the bond was placed in the hands of Nott, it was thereafterwards, on the 16th day of the same August, fraudulently and covinously agreed between Nott and the plaintiff, without the consent or knowledge of the defendants, that instead of $10,000 being paid to Nott, he should receive the sum of $8317, and that the balance should be applied for two years' interest in advance for one of the notes, and one year's interest on the other; and that Nott, on taking a conveyance of the land, should mortgage the same back to the plaintiff to secure the pay. ment of one of the notes, in addition to the security of the railroad shares; that thereafterwards, in pursuance of said fraudulent agreement, the various matters therein stated were performed by the plaintiff and Nott, in fraud of the defendants, and without their knowledge and consent; by which fraudulent and covinous change in the terms of the original agreement, Nott was prevented from receiving the full sum of $10,000, and was also disabled from receiving any further sum of money by the sale or mortgage of the land, and so disabled to pay the defendants the sum they might pay as his sureties by reason of the bond. The plea also averred that Nott took and applied the money to his own use, and that the defendants were sureties for him. And so the bond was obtained from them by the fraud and covin of the plaintiff and Nott.

The defendants pleaded, secondly, that the plaintiff and Nott were both residents of Massachusetts at the time the notes were given, and the deduction of interest made thereon; that the land conveyed to Nott was not worth more than $5000; that the transaction was usurious under the statute of Massachusetts, and they claimed a deduction from the amount of the notes under the statute of that State against usury.

On demurrer to the pleas -Held, that the first plea was good; that the undertaking of the defendants was collateral to that of Nott, and that the plea set forth a valid defence. Held also, that the second plea was bad; that the statute of Massachusetts applied only to the remedy, and could not be enforced in this State.

SALEM V. EDGERLY.

Contribution by several holders of property mortgaged.

Where several purchasers of different parcels of the property covered by the same mortgage, stand in equali jure, they are bound to contribute to the redemption of the mortgage in proportion to the relative value of their respective parcels. Where one of such purchasers paid to the holder of such a mortgage the full amount of it, it was held, that he could not avail himself of such mortgage to compel any other purchaser to pay more than his proportionate share of the mortgage, unless he had some equitable claim to be exonerated from contributing, which was not asserted here.

HAM v. GOODRICH.

Parol agreement to convey land — Part performance — Statute of frauds. Upon a bill in equity praying for the specific performance of a verbal agreement to convey lands, the part performance required to take the case out of the operation of the statute of frauds, must be such as to place the party seeking the specific performance in the situation to be held liable as a wrongdoer, on account of the acts done in part execution of the agreement, and against which liability he would be protected by its complete execution.

Possession of the land is not such part performance, unless the possession be delivered in pursuance and part execution of the agreement charged in the bill, and the party exercising the possession would be liable as a wrongdoer therefor without the specific performance prayed for.

By an agreement between a father and his son, that if the son with his family would come and live with the father, and take care of him and of his farm so long as he should live, he would give the son his homestead farm, it is not implied that the father would give up the possession of the farm to the son during the life of the father, such possession not being necessary for the fulfilment of the proposed conditions.

Such an agreement is to be construed as a contract by the father to give to the son, in case he should fulfil the conditions proposed, a title to the farm by a testamentary devise or other instrument of conveyance, to take effect at the death of the father, and such agreement being charged in the bill, possession of the farm by the son during the life-time of the father is not possession delivered in part execution of the contract charged.

If, however, it is to be considered as implied in the agreement

thus charged, that the son should have the possession during the life-time of the father, and thus the possession be held to be in part execution of the agreement, still it is not such part performance as would take the case out of the statute as the complete performance of the residue of the contract, namely, the conveyance of the title at the death of the father, would not have the effect to protect him against liability as a wrongdoer, on account of exercising the possession in his father's life-time.

The defendant sold a pair of steers to Young, on the condition that the steers should remain his property till they were paid for. Young sold them to the plaintiff, who knew of the defendant's claim. Shortly after, the plaintiff and Young went to Colby to settle for the steers, and the plaintiff offered Colby the balance due for them. Colby refused to take it, unless he was also paid his other claims against Young: and he took and drove away the steers. Held, in trespass quare clausum and for taking away the steers, that Young had an interest in the steers which he could rightfully sell, and if he sold only his interest, the sale would be valid, and the purchaser would take his right; though it would be otherwise, if the sale was absolute and regardless of Colby's rights. Held also, that the tender was good to vest the property in the plaintiff, Colby having no right to claim any more than the price agreed.

GLIDDEN v. TOWN OF UNITY.

Acts of selectmen of towns - Indentures of apprenticeship.

The acts of town officers within the scope of their authority may furnish ground for presumptions and inferences as against their towns in the same manner as such presumptions and inferences may arise against natural persons from their acts. The acts and accompanying declarations of one of the selectmen of a town in taking proper measures for preparing and presenting an account to the selectmen of another town for medical attendance upon a pauper having his settlement in such other town, may be presumed to be done with the assent of the other selectmen. And if the acts and accompanying declarations as part of the res gestæ, are of such character as to warrant the inference that a claim has arisen in favor of the first town against the other, on account of the medical attendance, they are evidence to the jury tending to show that the first town had agreed to pay for the medical attendance.

By indentures of apprenticeship between the overseer of the poor of the defendant town and the plaintiff, a minor pauper was bound as an apprentice to the plaintiff, until he should arrive at the